P. v. Pearson (2013) · DecisionDepot

P. v. Pearson

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Supreme Court Mar 21, 2013 No. S058157Published

Filed 3/21/13

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE, ) ) Plaintiff and Respondent, ) ) S058157 v. ) ) MICHAEL NEVAIL PEARSON, ) ) Contra Costa County Defendant and Appellant. ) Super. Ct. No. 951701-2 ____________________________________)

A jury convicted defendant Michael Nevail Pearson of the first degree murders of Ruth Lorraine Talley and Barbara Garcia with personal use of a firearm and found true the multiple-murder special-circumstance allegation. (Pen. Code, §§ 187, 190.2, subd.(a)(3), former § 12022.5, subd. (a).)1 After a penalty trial, the jury returned a verdict of death. The court denied the automatic motion to modify the verdict (§ 190.4, subd. (e)) and imposed that sentence. This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment.

1 All further statutory references are to the Penal Code unless otherwise indicated.

I. FACTS

A. Guilt Phase

1. Prosecution Evidence

a. Introduction On the afternoon of Tuesday, April 25, 1995, defendant, a receptionist with the Conventional Housing division of the Richmond Housing Authority (RHA) was fired from his job because he had repeatedly threatened to ―do a 101 California,‖ referring to the infamous 1993 massacre of numerous employees in a law office located at 101 California Street in San Francisco committed by Gian Luigi Ferri, a disgruntled client of the law firm.2 Minutes later, defendant hunted down and fatally shot two of his former coworkers, Lorraine Talley and Barbara Garcia. These facts were undisputed at trial. The sole issue for the jury to decide in the guilt phase was whether defendant premeditated and deliberated the murders.

b. Defendant’s employment at the RHA and statements to coworkers before the murders In January 1993, defendant began working in a temporary position for the City of Richmond in the Employment and Training Department. He worked for that department for a year and then his employment was terminated. In July 1994, defendant was hired in a temporary position as an office assistant with the Section 8 division of the RHA, which handled the federal rental subsidy program. After about six months, he was hired by the Conventional Housing division in a

2 Sward, 101 California — Legacy of Horror, Highrise massacre left behind change, challenges, S.F. Chronicle (June 30, 1998), available online at <http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/1998/06/30/MN37101.DTL> [as of March 21, 2013].)

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permanent position as a receptionist. The terms of his employment included a six- month probationary period, which was scheduled to terminate three days after the murders. Talley was defendant‘s supervisor. Defendant chatted often with coworker Learinza Morris, and complained that he was treated unfairly and had a heavier workload than his coworkers. Defendant specifically mentioned Talley and Shirail Burton in making these complaints. About two months before the shootings, defendant mentioned to Morris that he had received a poor performance evaluation and that it was unjustified because ―his work wasn‘t being evaluated properly—truthfully.‖ Defendant felt he was being ―railroaded to a degree.‖ About three weeks before the shootings, defendant told Morris that he wanted to be transferred back to the Section 8 division of the RHA and that ―[t]hey better not mess with me because there might be a 101 California.‖ Some months before the shootings, while commuting to work, defendant told coworker Leona Kelly, ―Well, I know one thing, she [Talley] tries to get rid of me or they try to get rid of me, it‘s going to be another 101 California.‖ Defendant complained to Ronald Keeton, a housing project manager at the Conventional Housing division of RHA, that he was being treated unfairly at work. About two or three months before the shootings, defendant told Keeton, ―I ought to pull a 101‖ or ―if something happens to me, or if they get on me or make me quit my job or lose my job[,] there might be another 101 going on here.‖ Keeton believed defendant was joking. On the Friday before the shootings, defendant approached Janet Robinson at her desk at the RHA and said, ―Sometimes, you know, I feel like doing a 101 California Street here.‖ Robinson said, ―No, no, you wouldn‘t do that Michael‖ and ―If you do that, I‘ll lock myself in the safe.‖ Defendant assured her that he would not shoot her. He told her to not tell anyone about what he had said,

instruction and ―conscientiously consider all of the sentencing alternatives, including the death penalty where appropriate.‖ (People v. McWhorter (2009) 47 Cal.4th 318, 340.) ― ‗Our decisions have explained that death-qualification voir dire must avoid two extremes. On the one hand, it must not be so abstract that it fails to identify those jurors whose death penalty views would prevent or substantially impair the performance of their duties as jurors in the case being tried. On the other hand, it must not be so specific that it requires the prospective jurors to prejudge the penalty issue based on a summary of the mitigating and aggravating evidence likely to be presented. [Citation.] In deciding where to strike the balance in a particular case, trial courts have considerable discretion.‘ ‖ (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 47). Keeping these principles in mind, this court has held that ―either party is entitled to ask prospective jurors questions that are specific enough to determine if those jurors harbor bias, as to some fact or circumstance shown by the trial evidence, that would cause them not to follow an instruction directing them to determine penalty after considering aggravating and mitigating evidence.‖ (People v. Cash (2002) 28 Cal.4th 703, 720-721.) In other words, a trial court errs in precluding all counsel ―[from] ask[ing] jurors if they would automatically vote for or against death ‗in cases involving any generalized facts, whether pleaded or not, that were likely to be shown by the evidence‘ [citation].‖ (Id., at p. 720.) Here, defense counsel was permitted to ask prospective jurors whether they could weigh all the evidence before deciding penalty in a case involving multiple murder and whether they could consider a defendant‘s lack of criminal history as mitigating. Counsel was also permitted to clarify for the prospective jurors that a defendant who killed in self-defense did not commit murder and would not face a penalty trial. Indeed, as this court has recognized, ―it would be ‗rare . . .‘ to find mitigating evidence in a capital case which could justify or excuse the defendant‘s

maintains that because neither the court nor counsel could identify jurors who were disqualified on this basis, the jury as sworn was ―tainted.‖ We disagree. According to defendant, the court erroneously defined ―aggravating circumstances‖ while it conducted individual voir dire of certain pro-life or pro- death prospective jurors, none of whom were selected to serve on the jury. For example, in qualifying a member of the first panel, the court stated: ―In phase two you are going to be asked to evaluate mitigating and aggravating factors. Certainly one of the aggravating factors may be the crime facts themselves, such as whether or not this was deliberate and premeditated murder.‖ To a member of the third panel, the court commented on the standard instruction defining deliberate and premeditated murder (CALJIC No. 8.20), as follows: ―Based on the instruction[] I have just given you, I can tell you that a first degree murder is a murder that is committed with premeditation and deliberation. All right. That is one of the crime facts you consider in the penalty phase of this trial.‖ It then asked this prospective juror, ―Do you feel based on your current frame of mind you would be able to evaluate possible mitigating circumstances as well as the crime facts before you determined what penalty to impose?‖ Preliminarily, defendant‘s failure to make a timely and specific objection on the ground he now raises forfeits the claim on appeal. (See People v. Foster (2010) 50 Cal.4th 1301, 1324.) In any event, the claim fails on the merits. We have repeatedly rejected related arguments that a penalty phase jury is precluded from considering in aggravation ―any aspect of the crimes that was part and parcel of the elements of first degree murder.‖ (People v. Coddington (2000) 23 Cal.4th 529, 640, italics added; see also Lowenfield v. Phelps (1988) 484 U.S. 231, 246 [―the fact that the aggravating circumstance duplicated one of the elements of the crime does not make [the death] sentence constitutionally infirm‖]; People v. Millwee (1998) 18 Cal.4th 96, 164 [the jurors‘ consideration of the bare

prospective jurors whose questionnaire responses indicated strong support for the death penalty, the court‘s questions focused on their willingness to properly consider and weigh evidence offered in aggravation and mitigation in deciding penalty, and avoided the issue of whether the prospective juror could vote for life without possibility of parole. In contrast, in questioning prospective jurors whose questionnaire responses indicated strong opposition to capital punishment, the court inquired about their ability to impose a death sentence, but not whether they would consider all the evidence before deciding penalty. As a result, defendant asserts the jury selection process was unfair. Preliminarily, because defendant did not object to the adequacy of voir on the ground he raises on appeal, the claim is forfeited. (People v. Harris (2005) 37 Cal.4th 310, 330.) It also lacks merit. ―Decisions concerning the qualifications of prospective jurors to serve rest within the ‗ ―wide discretion‖ ‘ of the trial court, and the manner of the court‘s conduct of voir dire is ‗ ―seldom disturbed on appeal.‖ ‘ (People v. Thornton [(2007)] 41 Cal.4th [391,] 420.)‖ (People v. Martinez (2009) 47 Cal.4th 399, 445.) While trial courts ―should be evenhanded in their questions to prospective jurors during the ‗death-qualification‘ portion of the voir dire, and should inquire into the jurors‘ attitudes both for and against the death penalty to determine whether these views will impair their ability to serve as jurors‖ (People v. Champion (1995) 9 Cal.4th 879, 908–909), they are not required to examine each prospective juror in the same manner, ―lest the court feel compelled to conduct a needlessly broad voir dire, receiving answers to questions it does not need to ask‖ (People v. Thornton, supra, 41 Cal.4th at p. 425). We disagree that the court‘s voir dire predisposed the selected jury to favor the death penalty. The court examined each prospective juror individually and

6. Batson/Wheeler Defendant claims the trial court erred in denying his motion under Batson v. Kentucky (1986) 476 U.S. 79 (Batson ) and People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler) based on the prosecutor‘s exercise of a peremptory challenge to excuse an African-American prospective juror. We disagree. During jury selection, defense counsel objected to the prosecutor‘s excusal of Prospective Juror S.G., an African-American, on the ground that there were ―so few‖ African-Americans on the panel. The trial court denied the motion, finding defendant failed to show ―systematic exclusion.‖ ―Both the state and federal Constitutions prohibit the use of peremptory challenges to remove prospective jurors based solely on group bias. (Batson, supra, 476 U.S. at p. 89; Wheeler, supra, 22 Cal.3d at pp. 276-277.) . . . ‗[T]he United States Supreme Court reaffirmed that Batson states the procedure and standard to be employed by trial courts when challenges such as defendant‘s are made. ―First, the defendant must make out a prima facie case by ‗showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.‘ [Citations.] Second, once the defendant has made out a prima facie case, the ‗burden shifts to the State to explain adequately the racial exclusion‘ by offering permissible race-neutral justifications for the strikes. [Citations.] Third, ‗[i]f a race-neutral explanation is tendered, the trial court must then decide . . . whether the opponent of the strike has proved purposeful racial discrimination.‘ [Citation.]‖ ‘ (People v. Cornwell (2005) 37 Cal.4th 50, 66-67, quoting Johnson v. California (2005) 545 U.S. 162, 168, fn. omitted (Johnson).)‖ (People v. Guerra (2006) 37 Cal.4th 1067, 1100.) ―[A] defendant satisfies the requirements of Batson’s first step by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred.‖ (Johnson v. California, supra, 545 U.S. at p. 170.)

We have held that ―[a]lthough the prosecutor‘s excusal of all members of a particular group may give rise to an inference of impropriety, especially if the defendant belongs to the same group, that inference . . . is not dispositive.‖ (People v. Crittenden (1994) 9 Cal.4th 83, 119; cf. People v. Guerra, supra, 37 Cal.4th at p. 1101 [no prima facie showing where the prosecutor excused the only Hispanic sitting in the jury box, with only two other Hispanics remaining on the entire panel].) The prosecution did not excuse all African-American prospective jurors. Defense counsel acknowledged that ―[his motion] was probably [too] early‖ to succeed. Indeed, defendant points to no ―suspicious‖ appearance created by the prosecutor‘s use of his second peremptory challenge against S.G. (See People v. Lancaster (2007) 41 Cal.4th 50, 76 [the percentage of African-American women excused by the prosecutor was not ― ‗suspicious,‘ ‖ nor had it ―reached a level that suggested an inference of discrimination‖].) In any event, the record suggests that the prosecutor had several race-neutral reasons for challenging this juror. During voir dire, Prospective Juror S.G. described herself as very religious and indicated she would find voting for the death penalty ―hard‖ because of her religious beliefs. (See People v. Hoyos (2007) 41 Cal.4th 872, 902-903 [a prospective juror‘s equivocation about the death penalty and strong religious beliefs against capital punishment provide race-neutral reasons for a prosecutor‘s decision to exercise a peremptory challenge].) In addition, like defendant, S.G. was a ―governmental‖ employee and ―responsible to a supervisor.‖ One of S.G.‘s neighbors, who was employed by the City of Richmond, first informed her about the case. Also, S.G. indicated in her questionnaire that psychologists and psychiatrists ―are good,‖ that they ―would have a good opinion‖ in court, and that either she or a close relative had seen a psychologist or psychiatrist. Further, S.G. was acquainted with the prosecutor from prior employment in which she had

misunderstanding arising from the assertedly improper comment. (Id. at p. 265; see also People v. Hill (1992) 3 Cal.4th 959, 1003 [defendant‘s joinder in the prosecution‘s challenge for cause forfeited his claim that the trial court erred in granting the challenge].) Defendant maintains that the claim is properly before us because, as the high court has explained, a discriminatory jury selection process inflicts harm on not only the defendant but also the excluded juror and community at large. (See Batson, supra, 476 U.S. at p. 87; Powers v. Ohio (1991) 499 U.S. 400, 406.) However, whatever harm an erroneous ruling on a challenge for cause may inflict on the excluded juror and community at large, a defendant may waive his right to complain. In People v. Edwards, supra, 54 Cal.3d 787, a local television station had requested extensive media coverage of the entire trial. (Id. at p. 812.) The defendant objected, and the court denied the request at least during part of jury selection. (Ibid.) On appeal, the defendant argued that the ruling violated the public‘s right to a public trial. We held that the defendant could not assert the public‘s right to a public trial. ―[D]efendant‘s objection to the media request waived his right to complain of the court‘s ruling on appeal.‖ (Id. at p. 813.) Similarly, here, defendant waived his right to complain of asserted error in granting his own challenge for cause. ―Defendant is not entitled to the windfall of a reversal of a conviction‖ because the court did what he requested. (Ibid.) Further, to the extent defendant frames his claim as one of judicial bias or racial discrimination by the trial court in deciding his challenge for cause, it is forfeited on appeal because he failed to alert the court to the perceived bias. (See People v. Elliott (2012) 53 Cal.4th 535, 572 [defendant forfeited the claim that the trial court exhibited racial bias during the jury selection process by failing to raise the issue at trial].)

On direct examination, the prosecutor asked RHA Director Art Hatchett, ―So at least in terms of his performance on the job, [defendant] had no difficulty premeditating and deliberating?‖ Defense counsel objected on the ground the question was leading, and the court sustained the objection. Thereafter, the prosecutor rephrased the question: ―Did you perceive any difficulty on the part of [defendant] to think out in advance the things that he needed to do to get the job done at the Housing Authority? ‖ Hatchett answered, ―No.‖ Defendant forfeited this claim by failing to object to the question as rephrased, and in any event, he fails to demonstrate the question was improper. The claim is therefore without merit. Next, defendant cites as ―leading‖ the following question that the prosecutor posed to Hatchett regarding a letter defendant wrote to Talley in which he described his ―improvement goals‖: ―So at least as of March of 1995, did you perceive any kind of defect, mental or otherwise, in the mind of [defendant] that would prevent him from thinking about things in the future?‖ Defendant forfeited the contention by failing to object. In any event, the question did not suggest any particular answer. Instead, it permitted Hatchett to describe his perception of any aspect of defendant‘s mental state that would hinder his ability to think prospectively. There was no misconduct. Defendant next complains about the prosecutor‘s question to coworker Janet Robinson concerning defendant‘s perceptions of reality while he and she occasionally discussed current events and social issues at work. Specifically, the prosecutor asked Robinson, ―And during these conversations did you ever detect any kind of defect or oddity that [caused] [defendant] to not really perceive reality at all . . .?‖ Robinson responded, ―No, I don‘t think there was any defect or anything. I just think that he had a different perspective and things, he seemed to dislike—.‖ As defendant concedes, he did not object to this question as leading.

Therefore, the claim is not cognizable on appeal. In any case, the question was not improper. The prosecutor did not attempt to elicit a particular response from Robinson. Rather, he offered her an opportunity to relate her observations, if any, based on her experience working and conversing with defendant at RHA, of defendant‘s inability to perceive reality. The same is true of the prosecutor‘s follow-up question to Robinson, ―Did he seem to be speaking with you in an appropriate way about these issues that you talked about?‖ As the court indicated in overruling defense counsel‘s ―leading‖ objection, the prosecutor was merely confirming Robinson‘s previous testimony that she did not perceive defendant as unable to communicate rationally during their conversations. There was no misconduct. Thereafter, Robinson testified that, on the first day of defendant‘s employment at the Conventional Housing division at RHA, he told her he had ―heard a lot about the department‖ when he worked at the Section 8 division. The prosecutor asked the witness, ―But if I understand you correctly at least at that time he didn‘t share with you what [he had heard]?‖ On defense counsel‘s objection to the question as leading, the court conducted a sidebar conference and explained that it would allow the attorneys to ask leading questions for the purpose of laying a foundation or clarifying earlier testimony. Thereafter, the court sustained defense counsel‘s objection and, thus, contrary to defendant‘s contention here, he suffered no prejudice. Defendant‘s additional complaint that the court failed to admonish the prosecutor is forfeited because he failed to request an admonition. Next, after Robinson testified that at times defendant violated office protocol by permitting applicants to access areas of the office restricted to employees, the prosecutor asked a series of leading questions about defendant‘s compliance with other office procedures. The court sustained defense counsel‘s

Next, defendant contends that the court erroneously overruled defense counsel‘s objection that the prosecutor was improperly suggesting to Robinson that when defendant said, ―I ain‘t no joke,‖ he was ―leaning over‖ Talley‘s body in a particular position. Not so. The witness had already testified that defendant was standing over Talley when he made the statement. In compliance with the court‘s guidelines, the prosecutor properly sought clarification on the point. The court did not err. Next, defendant contends the prosecutor improperly questioned Ronald Keeton, a housing project manager at RHA, about defendant‘s statement that ―he ought to pull a 101.‖ Specifically, Keeton was asked, ―you had seen publicity about just how much harm a 101 California could cause‖ and the ―101 California‖ ―affected a lot of people?‖ Defense counsel initially objected that the question was leading, but then asserted that ―it‘s not even a question.‖ After the court overruled the objection, the prosecutor repeated his inquiry, ―I ask you it‘s harmed a lot of people, publicity was great because it affected a lot of people, the 101 California?‖ Keeton answered, ―That‘s correct.‖ Here, in addition to his contention that the question did not fall within the court‘s stated parameters concerning permissible leading questions, defendant argues that the prosecutor‘s posing the question was particularly reprehensible because he improperly used this examination as a dress rehearsal for his penalty phase argument that, when defendant threatened to do a ―101 California,‖ he intended the aftermath of the massacre to send ―shockwaves‖ through the community and affect ―a lot of people.‖ Even assuming the question was improper, it was harmless. The evidence overwhelmingly showed that for months in advance of the murders, defendant repeatedly threatened coworkers that, if his supervisors were to fire him, ―I ought to do a 101,‖ ―there might be another 101 California,‖ and ―it‘s going to be another 101 California.‖ That is, defendant began publicizing his intentions in

a likely effort to have as many coworkers as possible fear and be affected by the massacre that he planned and believed would be justified by a wrongful termination of his employment. In addition, before deliberations, the court instructed the jury that statements and arguments by counsel were not evidence. The questions or remarks did not affect the trial‘s outcome under any standard. Next, defendant complains of the following questions posed to Dr. Berg: (1) ―do you have an opinion as to what a statement like ‗I ain‘t no joke‘ might mean in terms of the psychiatric condition of the person who is speaking it?‖; (2) does a crime such as Talley‘s murder speak of ―revenge?‖; (3) ―Is there anything delusional or hallucinatory in a crime like [Talley‘s murder] in your judgment?‖; (4) ―is [defendant‘s statement to coworker Learinza Morris that he felt as if his boss was going to stab him in the back] [the] kind of information you‘re referring to when you suggest that especially since Mr. Pearson knew for weeks that his job was in jeopardy, there was nothing delusional about what was going on in his mind on the [the day of the shootings]‖; (5) ―would a person who engages in an act of work place violence necessarily be delusional or psychotic?‖; and (6) ―would any of those personality disorders [(‗obsessive compulsive and schizoid and paranoid‘)] in any way prevent a person from committing deliberate and premeditated murder?‖ However, because defendant did not object on the ground the questions were leading, the claim is not preserved for appellate review. Additionally, none of the questions was impermissibly leading. Each was framed in accordance with the court‘s guidelines and none of them suggested a particular answer. Rather, each question permitted the expert to offer his opinions on matters based on his knowledge of the existence of specific facts. The questions involved the application of specific diagnoses to hypothetical scenarios that permitted the presentation of the experts‘ testimony in a practical, efficient manner. Contrary to defendant‘s contention, the fourth question properly called

hearsay. Essentially it‘s like defense counsel is asking the witness to confirm rumors.‖ Counsel asked ―if we could have an objection,‖ and the prosecutor rephrased, ―Objection, irrelevant. Calls for hearsay.‖ The court sustained the objection, and counsel complained no further. Defense counsel asked Hatchett whether he was aware of any memorandum concerning disputes between housing managers and Patricia Jones that circulated during the six-month period preceding the murders when defendant was employed by the Section 8 division. The prosecutor objected on hearsay grounds, and counsel responded that he was not offering the evidence for the truth of the matter. Before the court ruled on the objection, the prosecutor interposed a relevance objection, which the court sustained, commenting, ―If you are not worried about whether or not they are true, it sounds like so much rumor mongering.‖ Counsel did not respond, and resumed cross-examination. The prosecutor thereafter made numerous objections without comment, many of which were sustained, and a speaking objection based on speculation. Counsel did not complain about the latter, and the court sustained the objection. During counsel‘s further cross- examination of Hatchett, the prosecutor made several speaking objections, without any protest by counsel, and numerous objections without comment that the court sustained. Defense counsel then asked Hatchett whether, at any time ―throughout your life,‖ he had ever heard a person express an intention to harm someone but actually intended only to ―express[] displeasure at something the [person] has done‖ or joke about what the person did. The court sustained the prosecutor‘s objection that the question called for irrelevant matter. ―Counsel, we‘re dealing with a case here, it‘s not relevant.‖ Outside the presence of the jury, the court granted counsel‘s request to make a record of his intention to continue objecting to any speaking objections by the prosecutor. Counsel also stated he felt that

comments the court had made in ruling on previous objections were demeaning. In response, the court agreed with counsel that speaking objections were inappropriate and directed the prosecutor to state only a legal basis in support of any objection. With regard to counsel‘s second concern, the court stated: ―Mr. Veale, the only reason I make comments is because I feel an attorney does not understand, because you or Mr. Jewett continue to do something after an objection has been sustained on a topic which has already been ruled upon, so to the extent that I feel you need the correction and need the clarification, I will do so to make sure you understand what the court‘s ruling was.‖ Preliminarily, defendant did not object to the majority of the prosecutor‘s speaking objections or otherwise request an assignment of misconduct in each instance. When defendant did object, he did not also request an assignment of misconduct or ask that the jury be admonished to disregard the prosecutor‘s remarks. Because an admonition would have cured any harm, defendant is not excused from complying with the objection requirement. Therefore, the claims were not preserved for appeal. (People v. Fuiava, supra, 53 Cal.4th at p. 679.) In any event, the claim lacks merit. We first address defendant‘s contention that the prosecutor‘s speaking objections denigrated defense counsel‘s integrity. ―When a prosecutor denigrates defense counsel, it directs the jury‘s attention away from the evidence and is therefore improper. [Citation.] In addressing a claim of prosecutorial misconduct that is based on the denigration of opposing counsel, we view the prosecutor‘s comments in relation to the remarks of defense counsel, and inquire whether the former constitutes a fair response to the latter.‖ (People v. Frye (1998) 18 Cal.4th 894, 978.) Here, the focus of the prosecutor‘s comment that counsel was being disingenuous was on counsel‘s attempt to elicit hearsay testimony, not on counsel‘s integrity, and it was not improper. (See ibid. [the prosecutor‘s

whether she was aware of the existence of a felony bench warrant for her arrest on charges of grand theft, perjury, and check fraud. After Gardner initially denied knowledge of an outstanding warrant for her arrest on the above noted charges, defense counsel objected and the prosecutor specifically asked the witness whether she had fraudulently misappropriated a ―social services check.‖ The court interrupted and indicated the witness should be advised of her rights under Miranda v. Arizona (1966) 384 U.S. 436. When the prosecutor commenced to do so, counsel objected. The court excused the jury and conducted a hearing on the matter. The prosecutor informed the court that ―we have very conclusive evidence showing on May 5th, 1996, that this witness cashed a Social Services or Social Security check, she left her thumb print on that check. [¶] The following day she filed an application under penalty of perjury that the check had been lost. The check was then replaced and on May 10th, she then cashed that check. [¶] A felony complaint charging check fraud, perjury, and grand theft has been filed against her. There is a $30,000 bench warrant for her arrest. It‘s that incident that I want to inquire into.‖ The court stated that it would ―take the [prosecutor] at his word that there is a complaint filed,‖ and advised the witness of her rights. After briefly describing his intent to offer the evidence to establish the witness‘s bias, the prosecutor conceded that he did not have independent proof that Gardner had knowledge of the warrant ―other than this is an incident that happened four months ago.‖ The prosecutor represented that the warrant had issued two weeks earlier and ―FA‖ appeared on its face, which he interpreted as ―failure to appear.‖ The court responded that it was unclear whether Gardner was aware of the warrant, whether the warrant ordered her to appear in court, or whether she failed to do so. The court did not rule explicitly on defense counsel‘s objection, but gave the prosecutor the option to pursue the matter in rebuttal. The

have taken, described [] a defensive posture to protect your opinion, right? [¶] DR. WALSER: No, I feel like I‘m trying to explain what I understand. And at times the questions have only offered me or tried to have me offer only a part of it and it‘s an inaccurate representation. [¶] What I am dedicated to is making sure that it‘s my opinion and the test data and everything that I have done are represented accurately. [¶] . . . [¶] [The prosecutor:] When [defendant] actually went about the process of killing people, he actually did it very efficiently, didn‘t he? [¶] [Defense counsel:] That‘s argumentative. Argumentative, judge, objection. [¶] THE COURT: Overruled. [¶] [The prosecutor:] It was actually a very efficient job in his—job in his mind, it was to kill people, he actually did it in a very organized and efficient way, didn‘t he? [¶] DR. WALSER: I guess I would have to think about the word efficient.‖ ―An argumentative question is designed to engage a witness in argument rather than elicit facts within the witness‘s knowledge.‖ (People v. Guerra, supra, 37 Cal.4th at p. 1125.) Here, Dr. Walser testified that she considered the pretrial evaluations by Drs. Wilkinson and Kincaid in forming her opinion that defendant was psychotic and experiencing disorganized thinking when he shot the victims. The questions quoted above, though barbed and accusatory at times, were not inappropriate because they were designed to elicit additional facts to clarify the degree to which Dr. Walser relied on or was influenced by the reports of Drs. Wilkinson and Kincaid. ―An expert may be cross-examined regarding the subject to which his testimony relates, the matter on which he bases his opinion, and the reasons for his opinion.‖ (People v. Bell (1989) 49 Cal.3d 502, 532; see also Evid. Code, § 721, subd. (a).) In addition, cross-examination of Dr. Walser on whether defendant killed Talley and Garcia in an efficient manner properly probed her opinion that defendant was experiencing disorganized thinking at the time he shot the victims. No misconduct occurred.

e. The prosecutor’s remarks at the bench Defendant contends that the court permitted the prosecutor to make inappropriate remarks ―in earshot of the jury.‖ The claim fails. During counsel‘s redirect examination of Dr. Walser, defense counsel informed the court that he might have to testify regarding a matter he discussed with defendant. Counsel said he had made no notes of the communication and provided no discovery on the matter to the prosecution. The prosecutor responded, ―I look forward to the opportunity to cross-examine [defense counsel] because I assume he will be laying a foundation.‖ Outside the presence of the jury, defense counsel complained that the prosecutor ―[stood] back two or three feet‖ and spoke ―so that the Court could hear it . . . as well as everybody else in the [court]room‖ and that ―what [the prosecutor]‘s doing is trial lawyering, but he‘s not doing it fairly.‖ Counsel also said he had previously complained that the prosecutor spoke loudly at times, the prosecutor did not ―play by the rules and play fairly,‖ and the prosecutor prefaced each question with argument. The prosecutor denied he had raised his voice as he stepped away from the bench. The court acknowledged that the prosecutor made the above statement as he stepped away from the bench but noted that he was ―facing away from the jury.‖ The court stated that it did not detect any difference in the tone of the prosecutor‘s voice but accepted the fact that it ―may have carried further.‖ The claim lacks merit. Defendant offered no evidence that the jury actually heard the prosecutor‘s remark, and he therefore cannot show prejudice. Even assuming the jury heard the comment, they would have appreciated it for what it was, that is, simply a display of an attorney‘s competitive spirit during adversarial litigation. Further, in making the remark, the prosecutor neither directly nor inferentially questioned counsel‘s motives or integrity. (People v. Price (1992) 1

essence . . . . It‘s the weighing and considering. It‘s the thinking about am I going to do it? Am I not going to do it? Okay? Which precedes the decision to kill.‖ The prosecutor urged that, among other evidence, Ferguson‘s testimony that defendant said, ―I could shoot her [(Talley)]‖ and Ferguson‘s characterization of defendant‘s behavior as ―like he was talking to himself. . . . like a self-query‖ was sufficient proof that defendant deliberated the murders. Here, defendant contends that the prosecutor misstated the definition of ―deliberation‖ by omitting the requirement that the jury find beyond a reasonable doubt that defendant also weighed and considered the reasons against killing the victims. As a result, the jury assertedly applied an erroneous definition of this element of first degree murder, rendering the verdicts constitutionally invalid. For the reasons stated below, the claim lacks merit. ― ‗[D]eliberate‘ means ‗formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action.‘ ‖ (People v. Mayfield (1997) 14 Cal.4th 668, 767; see also People v. Koontz (2002) 27 Cal.4th 1041, 1080; People v. Bender (1945) 27 Cal.2d 164, 183.) Defendant asserts that when the prosecutor paraphrased the deliberation requirement for first degree murder as, ―[i]t‘s the thinking about am I going to do it. . . [a]m I not going to do it,‖ he erroneously omitted the requirement that the killer consider the reasons against killing. Defendant maintains that absent this specific thought process, one has not engaged in ―deliberation.‖ The claim is forfeited, however, because defendant made no objection, which could have easily cured any harm. Even if the prosecutor‘s paraphrase did not refer specifically to the weighing and consideration of the reasons against making a particular choice, the prosecutor correctly referred to this requirement elsewhere in his argument. He

the intent to kill. (See People v. Stitely (2005) 35 Cal.4th 514, 543.) We find no abuse of discretion. ―Section 28, subdivision (a) provides that evidence of mental illness ‗shall not be admitted to show or negate the capacity to form any mental state.‘ Subdivision (b) of section 28 states that as a ‗matter of public policy there shall be no defense of diminished capacity, diminished responsibility, or irresistible impulse in a criminal action . . . .‘ Section 29 prohibits expert witnesses from directly stating their conclusions regarding whether a defendant possessed a required mental state. It provides, ‗[i]n the guilt phase of a criminal action, any expert testifying about a defendant's mental illness, mental disorder, or mental defect shall not testify as to whether the defendant had or did not have the required mental states . . . . The question as to whether the defendant had or did not have the required mental states shall be decided by the trier of fact.‘ ‖ (People v. San Nicolas (2004) 34 Cal.4th 614, 662.) A trial court‘s decision to admit or exclude expert testimony is reviewed for abuse of discretion. (Id. at p. 663.) ―Murder that is premeditated and deliberated is murder of the first degree.‖ (People v. Cortez (1998) 18 Cal.4th 1223, 1232.) The very definition of ―premeditation‖ encompasses the idea that a defendant thought about or considered the act beforehand. ― ‗ ―[P]remeditation‖ means thought over in advance,‘ ‖ and ― ‗ ―[d]eliberation‖ refers to careful weighing of considerations in forming a course of action.‘ ‖ (People v. Solomon (2010) 49 Cal.4th 792, 812, quoting People v. Koontz, supra, 27 Cal.4th at p. 1080.) ―An intentional killing is premeditated and deliberate if it occurred as the result of preexisting thought and reflection rather than unconsidered or rash impulse.‖ (People v. Stitely, supra, 35 Cal.4th at p. 543.) The court instructed the jury that the ―word ‗deliberate,‘ which relates to how a person thinks, means formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the

qualification as an expert . . . .‘ ‖ [Citation.]‘ ‖ (People v. Wallace (2008) 44 Cal.4th 1032, 1062-1063.) At the time of trial, Dr. Hoddick had been in practice since 1979, specializing in diagnostic medical imaging, and had been board certified since 1983. He was on active staff at John Muir Medical Center and Mount Diablo Medical Center and also was the Medical Director of Contra Costa County MRI in Pleasant Hill. Dr. Hoddick had been a member of the faculty at the University of California, San Francisco, Medical Center since 1984 and had published widely in the area of radiology. His research had won national prizes. Dr. Hoddick had testified as an expert in medical imaging in at least 12 trials, three or four of which involved criminal matters. He explained that the MRI utilizes ―a very specialized camera for looking inside the human body to evaluate structural anatomy inside the body‖ that ―uses two physical properties[,] . . . [a] high frequency image and radio frequency wave [] [that are] used . . . with the MRI to take exquisitely detailed pictures.‖ Dr. Hoddick stated that he evaluates MRI results by reviewing the images produced to determine ―what‘s going on inside the body.‖ Here, defendant acknowledges that Dr. Hoddick was qualified to testify as an expert in diagnostic medical imaging but maintains he was not competent to opine whether the abnormalities he identified had any impact on defendant‘s behavior. Specifically, he asserts that Dr. Hoddick did not establish that his experience and training in diagnostic medical imaging enabled him to opine whether fossa abnormalities such as those he detected on defendant‘s MRI results could affect human behavior. Based on our review of the record, we agree with defendant that the prosecution failed to demonstrate the radiologist was qualified under Evidence Code section 720 to testify regarding the effect of fossa abnormalities on human behavior, a subject that is clearly beyond a juror‘s common knowledge. Evidence of this nature is ordinarily admitted through the

As discussed above, whether a witness qualifies as an expert under Evidence Code section 720, subdivision (a), comes within the trial court‘s discretion. (People v. Wallace, supra, 44 Cal.4th at pp. 1062-1063) During the defense case-in-chief, defense counsel sought to qualify Dr. Walser as an expert in the fields of forensic psychology, neuropsychology, psychology, and clinical psychology, and offered her testimony on the issue of defendant‘s mental state during the shooting spree. After counsel elicited information about her education, skills, and experience in each subject, the prosecutor accepted the court‘s offer to voir dire the witness. He asked Dr. Walser additional questions about her qualifications in each of the subjects identified. She stated that she administered the Halstead-Reitan test, which is specifically designed to detect neurological brain damage, to in-custody defendants on five to 10 occasions during the five years preceding defendant‘s trial and on two or three occasions during the preceding two years. In the six years preceding defendant‘s trial, Dr. Walser testified for the defense in three to five criminal trials. During one or two of those trials, she testified about the results of the Halstead-Reitan test after having personally administered the test. The court found Dr. Walser qualified to offer expert testimony in the areas of neuropsychology, psychology, and clinical psychology. Thereafter, on direct examination, Dr. Walser testified that the results of neuropsychological tests she administered to defendant indicated mild impairment, and that this level of impairment would have a noticeable effect on a person‘s personality and behavior. Before Dr. Walser tested defendant, she had been provided an oral report of defendant‘s EEG results and MRI findings. The EEG results indicated there was a ―questionable‖ abnormality in the left temporal region of defendant‘s brain, and the MRI findings indicated focal atrophy or a small cyst in the posterior temporal lobe. When defense counsel asked Dr. Walser

defendant had or did not have the required mental states, which include, but are not limited to, purpose, intent, knowledge, or malice aforethought, for the crimes charged.‖ Section 28, subdivision (a) precludes evidence showing diminished capacity, although it permits evidence of mental disease to be admitted ―solely on the issue of whether or not the accused actually formed a required specific intent, premeditated, deliberated, or harbored malice aforethought, when a specific intent crime is charged.‖ Subdivision (d) of section 28, however, recognizes the court‘s ―discretion, pursuant to the Evidence Code, to exclude psychiatric or psychological evidence on whether the accused had a mental disease, mental defect, or mental disorder at the time of the alleged offense.‖ Contrary to defendant‘s assertions, on numerous occasions Dr. Walser offered opinions that went to defendant‘s state of mind at the time he shot the victims. When defense counsel asked the expert what was ―disorganized‖ about defendant‘s attempt to talk further with Talley about the reasons for his termination, Dr. Walser responded: ―Well, that‘s not. It‘s probably an appropriate thing to do.‖ She then gratuitously added, ―But he was—I think he was escalating in terms of the stress he was experiencing. When that was not fulfilled and he didn‘t have that opportunity and he felt very wrong, then he—then it tipped the balance and he became —.‖ Counsel then asked Dr. Walser a series of questions about defendant‘s ―101 California‖ statements and specifically whether, sometime before the day of the murders, defendant was ―thinking about just what he said, doing a 101 California?‖ As we concluded in part II.B.2, ante, this question, like the question about any disorganization defendant may have experienced, asked the expert to opine directly about defendant‘s state of mind at the time of the offense, a question within the jury‘s exclusive province. (See People v. San Nicolas, supra, 34 Cal.4th at p. 663 [the trial court did not err by excluding forensic psychiatrist‘s opinion relating the concept of ―spillover rage‖ to the defendant‘s

mental state at the time of the crimes].) Thus, the trial court properly sustained the prosecutor‘s objections to these questions. The court also properly sustained prosecutorial objections to the following portions of Dr. Walser‘s testimony on the same ground: (1) ―[defendant] seemed to be [in] a reactive kind of state, rather than . . . cold and calculated‖; (2) ―[At the time of the crimes, defendant] didn‘t seem to know what he was doing‖; and (3) ―defendant‘s impairment [at the time of the commission of the crimes] definitely needs to be taken into consideration here. It‘s part of why he couldn‘t handle the stress he was under.‖ On the other hand, the court properly permitted the prosecution‘s expert, Dr. Berg, to interpret defendant‘s comment, ―I ain‘t no joke,‖ made before and after shooting Talley, as expressing ―anger,‖ ―retribution,‖ and ―revenge.‖ ―[S]ections 28 and 29 in fact leave an expert considerable latitude to express an opinion on the defendant‘s mental condition at the time of offense, within the confines, of course, of its twin prohibitions: no testimony on the defendant‘s capacity to have, or actually having, the intent required to commit the charged crime.‖ (People v. Cortes (2011) 192 Cal.App.4th 873, 910, citing People v. Coddington, supra, 23 Cal.4th at p. 583.) Dr. Berg‘s testimony properly related to defendant‘s general mental condition during his killing spree and did not express an opinion on his criminal intent when he shot the victims. In any event, defense counsel‘s failure to object forfeited any claim with regard to Dr. Berg‘s interpretation of defendant‘s ―I ain‘t no joke‖ comment. For the same reason, under sections 28 and 29, Dr. Berg was permitted to testify that defendant‘s conduct could be explained by the termination of his employment, and that what he ―believed was going to be happening to him for weeks before [the murders]‖ could not be explained by ―anything delusional or hallucinatory.‖ The expert did not describe defendant‘s mental state at the time he shot the victims, but rather, his diagnosed mental condition. And while defense

Counsel argued that, although the charges were dismissed after Dr. Berg prevailed on a suppression motion, the sequence of events leading to his exoneration ―goes to his bias and goes to his desire to do what he can to keep in[] the system, to keep his viability as a product for the District Attorney‘s Office and for the criminal defense bar.‖ Counsel stated also that he had ―obtained a number of [actual innocence findings] in the course of his career‖ and ―happen[ed] to know how easy it can be to get a declaration of factual innocence.‖ Counsel thus wanted to question Dr. Berg about the circumstances under which he obtained the actual innocence finding and whether the prosecuting agency opposed his efforts in this regard. Further, defense counsel asserted that Dr. Berg invoked his Fifth Amendment right against self-incrimination in an unrelated criminal case in response to a question by the defendant‘s attorney, a public defender, as to whether he was innocent of the charges. Also, in response to a news reporter‘s question about that case, Dr. Berg was quoted as saying, ―I was never convicted of any crime in this State or any other state and a story like this would be very harmful to my reputation. This is going to be ruinous to me and I feel ripped off.‖ Counsel urged that these events were relevant to prove Dr. Berg was biased against all public defenders when he testified for the prosecution in defendant‘s trial, and therefore, was biased against defendant‘s counsel, also a public defender. Counsel said he had a copy of the newspaper in which the article appeared. The trial court sustained the prosecutor‘s objection, finding that, under Evidence Code section 352, the proposed cross-examination involved a collateral matter and would necessitate an undue consumption of time. The court thereafter instructed the jury as follows: ―Ladies and gentlemen, with regard to the last two questions that were posed by [defense counsel,] Mr. Veale, I will tell you they were inappropriate questions. There was no factual

679; People v. Box (2000) 23 Cal.4th 1153, 1203.) We discern no violation of defendant‘s right to confront and cross-examine Dr. Berg in the trial court‘s ruling here. Whether Dr. Berg had or had not filed false claims with Medi Cal was, at most, nominally relevant to the subject matter of his testimony: expert opinion that defendant‘s criminal behavior was attributable to antisocial personality disorder, not brain abnormalities or family dysfunction.‖ (People v. Sapp, supra, 31 Cal.4th at p. 290.) Defendant claims the court violated his Sixth Amendment right to confront and cross-examine witnesses. He seeks to distinguish Sapp in that, here, even if Dr. Berg was not guilty of the fraud charges, impeachment on the subject was admissible to show that he was biased in favor of the prosecution and against public defenders whose clients opposed him. Specifically, Dr. Berg‘s ―remarkable success in obtaining suppression of the fraud evidence, dismissal of fraud charges, and a finding of factual innocence‖ constituted impeachable bias. The sequence of events leading to the actual innocence finding purportedly ―could well be linked— in [Dr. Berg‘s] own mind if not in the minds of the prosecuting agency and the courts that provided the relief he sought—to his service as a witness for the prosecution.‖ Also, defendant asserts his counsel should have had the opportunity to uncover any bias the expert harbored against public defenders as a result of the negative publicity surrounding the criminal case in which he invoked his Fifth Amendment right against self-incrimination, discussed above. ―As a general matter, a defendant is entitled to explore whether a witness has been offered any inducements or expects any benefits for his or her testimony, as such evidence is suggestive of bias. (People v. Duran (1976) 16 Cal.3d 282, 294; Evid. Code, § 780, subd. (f) [‗the court or jury may consider in determining the credibility of a witness any matter that has any tendency in reason to prove or disprove the truthfulness of his testimony at the hearing, including . . . [¶] . . . [¶]

(f) The existence or nonexistence of a bias, interest, or other motive‘].) ―[A defendant‘s] . . . right to cross-examination is not a matter of ‗absolute right.‘ Although we have said that ‗[c]ross-examination to test the credibility of a prosecuting witness in a criminal case should be given wide latitude‘ (Curry v. Superior Court (1970) 2 Cal.3d 707, 715, such latitude does not ‗prevent the trial court from imposing reasonable limits on defense counsel‘s inquiry based on concerns about harassment, confusion of the issues, or relevance‘ (People v. Box [, supra,] 23 Cal.4th [at p.] 1203; see Delaware v. Van Arsdall, supra, 475 U.S. at p. 679).‖ (People v. Brown (2003) 31 Cal.4th 518, 544-545 (Brown).) ―Moreover, reliance on Evidence Code section 352 to exclude evidence of marginal impeachment value that would entail the undue consumption of time generally does not contravene a defendant‘s constitutional rights to confrontation and cross-examination.‖ (Brown, supra, 31 Cal.4th at p. 545.) ―[A] criminal defendant states a violation of the Confrontation Clause by showing that he was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness, and thereby ‗to expose to the jury the facts from which jurors . . . could appropriately draw inferences relating to the reliability of the witness.‘ ‖ (Delaware v. Van Arsdall, supra, 475 U.S. at p. 680, quoting Davis v. Alaska (1974) 415 U.S. 308, 318.) ― ‗[U]nless the defendant can show that the prohibited cross-examination would have produced ―a significantly different impression of [the witness‘s] credibility‖ ([Delaware v.] Van Arsdall, supra, 475 U.S. at p. 680), the trial court‘s exercise of its discretion in this regard does not violate the Sixth Amendment.‘ (People v. Frye (1998) 18 Cal.4th 894, 946.)‖ (Brown, supra, 31 Cal.4th at pp. 545-546.) We find no abuse of discretion here. No evidence was presented or proffered that Dr. Berg attributed the granting of his suppression motion, dismissal of the fraud charges, and subsequent declaration of his actual innocence to special

employees complained to Toni Lawrence, a supervisor at RHA, that Talley, who supervised Burton, allowed Burton to do ―virtually little or no work‖ because they were friends; that Connie Taylor, a housing specialist at RHA, had heard from coworkers prior to 1995 that Talley showed favoritism towards certain employees, including Burton; that Hatchett was aware that employees felt they had been mistreated by Talley, Burton, and others and ―d[id] nothing to stop it‖; and that a RHA employee began to cry when Patricia Jones spoke harshly to her. Defense counsel offered the evidence as proof of defendant‘s state of mind when he shot the victims. ―I think the poisonous atmosphere bears upon the state of mind of the defendant. He has certainly an emotional and intellectual psychological deficit that is exacerbated by being treated poorly, which he was, and it gives him all kinds of reasons to think there is in fact a conspiracy, that people are wanting to do[], things like that.‖ The court ruled that the evidence was inadmissible hearsay and lacked relevance, and that its probative value was ―far outweighed‖ by its ―possible inappropriate prejudicial effect.‖ Defendant contends the evidence was critical to his mental state defense and although he did not offer the evidence in the penalty phase, now asserts the evidence was also admissible on the question of punishment to show that he believed his actions were morally justified. (See § 190.3, factor (f) [in determining penalty, the trier of fact may consider ―[w]hether or not the offense was committed under circumstances which the defendant reasonably believed to be a moral justification or extenuation for his conduct.‖].) ― ‗It is within a trial court‘s discretion to exclude evidence if its probative value is substantially outweighed by the probability that its admission would create a substantial danger of undue prejudice. (Evid. Code, § 352.) Our review on this issue is deferential. A trial court‘s decision whether to exclude evidence

ground that the consumption of time involved in doing so would outweigh the probative value of the evidence. (Evid. Code, § 352.) It permitted counsel to play only specific excerpts from the videotape to buttress the defense evidence that defendant was delusional at the time of the murders. When counsel resumed cross-examination, counsel played for the expert and jury a seven-minute excerpt of the videotape in which defendant discussed the murders and talked about Talley laughing at him on the day of the murders. Counsel asked Dr. Berg whether defendant‘s statements were evidence that defendant hallucinated hearing Talley‘s laughter, and the expert answered they were ―less than weak‖ evidence that defendant was hallucinating. During redirect examination, the prosecutor played an excerpt that purportedly showed defendant was engaged in a rational, matter-of-fact discussion of the murders with investigators and suggested he shot the victims because they had ―screwed with him.‖ On recross-examination, defense counsel again sought to admit and play the entire videotaped confession or, in the alternative, additional excerpts that purportedly evidenced defendant‘s disorganized thinking and remorse during the interview. For example, in one excerpt defendant asked investigators, ―Where is Lorraine?‖ and ―Where is Barbara?‖ and said ―I am sorry about that,‖ evidently referring to the shootings. In another, defendant stated, ―I mean, I really say that I‘m truly I am sorry that I done this now. . . . You know, the family is tore up just like my family is tore up.‖ Counsel sought admission of the evidence of defendant‘s remorse to rebut Dr. Berg‘s implication, on cross- examination, that defendant assassinated the victims, asserting the evidence was unlike what one would reasonably expect the typical coldhearted and detached assassin would feel after committing a murder. The prosecutor conceded the additional evidence of defendant‘s delusional state was admissible state of mind evidence but objected that defendant‘s statements expressing remorse and

b. Discussion In Crawford, the United States Supreme Court held that admission of testimonial out-of-court statements offered against a defendant violates the Sixth Amendment confrontation clause unless the witness is unavailable at trial and the defendant had a prior opportunity for cross-examination. (Crawford, supra, 541 U.S. 36.) ―Crawford did not define the term ‗testimonial,‘ but it mentioned several possible definitions, by several sources, of statements that are testimonial in nature, including ‗ ―extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions,‖ [citation]; [and] ―statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial . . . ‖ [citation].‘ (Id. at pp. 51–52.)‖ (People v. Rutterschmidt (2012) 55 Cal.4th 650, 657.) The high court has since held examples of testimonial evidence include certificates of laboratory analyses created to prove a fact in a criminal proceeding. (See, e.g., Bullcoming v. New Mexico (2011) __ U.S. __ [131 S.Ct. 2705, 2709] [laboratory report certified by nontestifying analyst stating the defendant‘s blood-alcohol level was above the legal limit]; Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305, 308 [certificates of analysis prepared by nontestifying analysts stating that the substance seized from the defendant was cocaine].) In contrast, testimonial evidence does not include a laboratory report that was produced for the primary purpose of catching a rapist who was still at large and not to obtain evidence for use against the defendant, who not under suspicion at that time. (Williams v. Illinois (2012) 567 U.S. __ [132 S.Ct. 2221, 2243-2244] (plur. opn. of Alito, J.) Recently, in People v. Dungo (2012) 55 Cal.4th 608, we held that statements in an autopsy report describing a nontestifying pathologist‘s observations of the condition of the victim‘s body were not testimonial.

―[S]tatements, which merely record objective facts, are less formal than statements setting forth a pathologist‘s expert conclusions. They are comparable to observations of objective fact in a report by a physician who, after examining a patient, diagnoses a particular injury or ailment and determines the appropriate treatment.‖ (Id. at p. 619.) In addition, the primary purpose of recording the facts in question did not pertain to a criminal investigation. (Id. at pp. 619-620.) This case is distinguished from Dungo because the Crawford issues involve the admission at trial of entire autopsy reports prepared by a nontestifying pathologist (Dr. Lipton) and the testimony of another pathologist (Dr. Peterson) who described the objective facts and opinions expressed in the reports. However, we need not decide whether, following our decision in Dungo, the evidence here is testimonial because any error in the admission of the autopsy reports and Dr. Peterson‘s testimony was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24; see People v. Rutterschmidt, supra, 55 Cal.4th at p. 661 [any erroneous admission of the lab reports indicating the presence of alcohol and three sedating drugs in the victim‘s blood samples was harmless].) ―The beyond-a-reasonable-doubt standard of Chapman ‗requir[es] the beneficiary of a [federal] constitutional error to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.‘ ([Ibid.]) ‗To say that an error did not contribute to the ensuing verdict is . . . to find that error unimportant in relation to everything else the jury considered on the issue in question, as revealed in the record.‘ (Yates v. Evatt (1991) 500 U.S. 391, 403.) Thus, the focus is on what the jury actually decided and whether the error might have tainted its decision. That is to say, the issue is ‗whether the . . . verdict actually rendered in this trial was surely unattributable to the error.‘ (Sullivan v. Louisiana (1993) 508 U.S. 275, 279.)‖ (People v. Neal (2003) 31 Cal.4th 63, 86.)

between the murders and the time of trial, Robinson‘s ―[whole] life completely stopped.‖ She lived like a recluse for about a year after the murders and left her home only to go to appointments with her psychologist and chiropractor. Robinson lived with ―a lot of fear‖ and feared for her children and husband because she believed ―if this could happen once, it could happen again.‖ Robinson was terminated from her job at the RHA, which she attributed to her experience of having witnessed the murders. She twice tried to go back to work but found it impossible to return to the place where her friends had been killed. Robinson felt guilty because her friends died and wished she could have done more to protect Lorraine and Barbara. Irma Abarca, Barbara‘s aunt, had known Barbara since she was a child and described Barbara as ―a happy person, real loving.‖ She described how Barbara‘s father, Guillermo Garcia, became angry when he learned that Barbara was dead and the police would not let him see Barbara at the crime scene. Abarca‘s 15-year-old daughter, Celia, testified Barbara was like a sister to her and described the emotional impact of Barbara‘s death. Genoveva Calloway, Barbara‘s aunt, drove Barbara‘s father to the crime scene, where he became very upset because police would not allow him to see Barbara‘s body. Calloway described how Barbara‘s parents were very emotional during the memorial service and cremation of Barbara‘s body. Barbara‘s parents ―still have the ashes in the house in the living room. They talk with her. And they‘re still in a lot of pain.‖ For several months after Barbara‘s death, her parents could not go back to work. Mrs. Calloway described seeing Guillermo hold the urn with Barbara‘s ashes and cry, ―[A]ll he can do is just cry and cry and just talk with her . . . . [H]e cannot let go of her.‖ Defendant contends the quantity of victim impact evidence introduced exceeded that permitted under Payne v. Tennessee (1991) 501 U.S. 808, 825

(Payne). He also complains that the admission of testimony about the effect of the victims‘ deaths on the community and from nonrelatives ―went far beyond‖ that authorized by Payne. ―The Eighth Amendment does not prohibit the admission of evidence showing how a defendant‘s crimes directly impacted the victim‘s family, friends, and the community as a whole, unless such evidence is ‗so unduly prejudicial‘ that it results in a trial that is ‗fundamentally unfair.‘ (Payne[, supra,] 501 U.S. [at p. 825 . . .); see People v. Marks (2003) 31 Cal.4th 197, 235-236.) Likewise, under state law, victim impact evidence is admissible as a circumstance of the crime under section 190.3, factor (a), so long as it ‗is not so inflammatory as to elicit from the jury an irrational or emotional response untethered to the facts of the case.‘ (People v. Pollock (2004) 32 Cal.4th 1153, 1180; see People v. Zamudio (2008) 43 Cal.4th 327.)‖ (People v. Taylor, supra, 48 Cal.4th at pp. 645-646.) The victim impact evidence fell within permissible parameters. (People v. Pollock, supra, 32 Cal.4th at p. 1180.) The overall number of victim impact witnesses was not excessive, given that there were two murder victims, and the testimony included three generations of the victims‘ families. (See People v. Taylor, supra, 48 Cal.4th at p. 646 [finding no error in the admission of the victim impact testimony of six family members representing four generations of the victim‘s close family].) The evidence was ―very typical of the victim impact evidence we routinely permit.‖ (People v. Valencia (2008) 43 Cal.4th 268, 300.) Defendant additionally challenges as improper evidence that Talley showed compassion toward defendant when she decided to spare him the embarrassment of having police escort him from RHA upon his termination. But evidence that described Talley‘s uniqueness, e.g., her compassion towards others including, ironically, defendant, is of the type specifically permitted under Payne. (Payne,

Finally, with respect to all but three of the letters, the court found their contents lacked trustworthiness because defendant‘s mother had solicited them during the pendency of a trial in which defendant‘s ―character [would be] called into question in the actual heat of litigation.‖ Defendant maintains that exclusion of the evidence violated his federal due process right to have the jury consider in mitigation any aspect of his character that would allow it to return a life sentence. Citing Green v. Georgia (1979) 442 U.S. 95, 97, defendant maintains that even assuming the evidence was excludable under our state rules of evidence, it should have been admitted because the evidence was relevant to an issue in the penalty phase of a capital trial. The claim lacks merit. ―In Green, although the [hearsay] statement was not otherwise admissible, the Supreme Court permitted the admission of a declaration against penal interest that the declarant shot the victim after ordering Green to leave because it was ‗highly relevant to a critical issue in the punishment phase of the trial‘ and ‗substantial reasons existed to assume its reliability.‘ ([Green v. Georgia, supra, 442 U.S.] at p. 97, 99.)‖ (People v. Eubanks (2011) 53 Cal.4th 110, 150.) Although we recognize a defendant‘s right under our state rules to introduce reliable mitigating evidence at the penalty trial, we have repeatedly declined to give Green the broad reading that defendant urges. (See ibid.; People v. Weaver (2001) 26 Cal.4th 876, 980-981 (Weaver).) Here, as in Eubanks and Weaver, we conclude that with the exception of the three letters that were not solicited by defendant‘s mother, the proffered evidence ― ‗bore no special indicia of reliability, so the rule [set forth in Green v. Georgia] did not require the trial court to dispense with the hearsay rule.‘ (Weaver, at p. 981.)‖ (Eubanks, at p. 150.) Defendant argues that the reliability of the contents of the letters is shown by their authenticity, which was undisputed, and their uniqueness, because each

The court noted that defense counsel had not included his name on the defense witness list at any time during trial, and stated it assumed that counsel‘s decision was made ―last minute based upon something that occurred in the course of the trial.‖ It continued: ―What I believe is appropriate under the circumstances is I will allow you to testify as you initially indicated to [the September 3 and September 6 interviews]. To go beyond that, I believe would call upon you to divulge matters of discovery which you have not divulged and you have not given me any reason why you have not divulged matters in discovery.‖ The court precluded counsel from testifying about defendant‘s alleged displays of remorse during his initial interviews with counsel. When counsel repeated that he had no notes from those interviews and argued there was no discovery to provide, the court responded: ―All right. I think there are certainly things if you anticipated you were going to be a witness on this matter that you as a witness could have prepared for the other side so that they would know the scope and nature of your testimony regarding these matters, rather than [offer] some sort of free-flowing state of consciousness type of [testimony]. I believe that‘s only fair. That‘s appropriate.‖ On appeal, defendant contends that the court erred in precluding counsel from testifying about defendant‘s displays of remorse. Specifically, he contends that the exclusion of the evidence was an unauthorized sanction under the discovery rules. (See § 1054 et seq. [reciprocal discovery statutes].) Here, because any error was harmless, we need not decide whether the trial court erred by limiting counsel‘s testimony, or under what circumstances it may be permissible for trial counsel to testify as a witness in the case. State law error occurring during the penalty phase requires reversal if there is a reasonable possibility that the error affected the verdict. (People v. Gonzalez (2006) 38 Cal.4th 932, 960-961.) This standard ―is the same, in substance and

defendant has been tried in the present proceedings, the presence of such convictions are an aggravating factor, the absence of such convictions are a mitigating factor in all other matters as has been suggested, the presence may be an aggravating factor, the absence may be a mitigating factor. [¶] Or it may be considered by you to be neutral with regard to B and C, the presence is an aggravating factor, the absence of such factor is a mitigating factor.‖ Thereafter, the prosecutor argued that the question before the jury in considering the applicability of section 190.3, factor (c) required ―[the jury] to decide how much weight to give to any alleged mitigating circumstance. So it‘s up to you to decide how much you should favor [defendant] because he doesn‘t have a felony conviction. How special he should be because of that, how many blue ribbons you want to paint on his chest because he doesn‘t have a felony conviction or he didn‘t commit a crime of violence.‖ Defendant contends that the court‘s corrective action in providing the jury with an explanation of section 190.3, factor (c) was insufficient and that it should have admonished the prosecutor for misstating the law. Also, defendant contends the prosecutor‘s argument telling the jurors how they should apply factor (c) was improper. The contentions are without merit. Preliminarily, by failing to request an admonition, defendant forfeited his claim that the court should have admonished the prosecutor. (See People v. Fuiava, supra, 53 Cal.4th 728.) Defendant also forfeited his claim that the prosecutor‘s argument misstated the law because he failed to object and ask that the jury be admonished. In any event, the claims are without merit. ―We have concluded in prior decisions that a trial court need not instruct that the absence of prior felony convictions is necessarily mitigating. [Citations.] We reasoned that a jury instructed that it may consider the absence of prior felony convictions [citations] and any ‗ ―aspect of the defendant‘s character or record that

crime under section 190.3, factor (a). Defendant maintains that as a result, in the absence of an express prohibition on their doing so, he was condemned in violation of the rule against labeling as aggravating any circumstance common to all murders or applicable to every defendant eligible for the death penalty. In support, defendant cites the United States Supreme Court‘s decision in Arave v. Creech (1993) 507 U.S. 463, which states in relevant part: ―When the purpose of a statutory aggravating circumstance is to enable the sentencer to distinguish those who deserve capital punishment from those who do not, the circumstance must provide a principled basis for doing so. [Citations.] If the sentencer fairly could conclude that an aggravating circumstance applies to every defendant eligible for the death penalty, the circumstance is constitutionally infirm.‖ (Id. at p. 474.) Under these circumstances, defendant contends the court was required to provide an instruction that clarified that premeditation and deliberation were elements of the capital crimes in this case, and thus could not be considered in aggravation. ―In deciding whether an instruction is erroneous, we ascertain at the threshold what the relevant law provides. We next determine what meaning the charge conveys in this regard. Here the question is, how would a reasonable juror understand the instruction. (E.g., California v. Brown (1987) 479 U.S. 538, 541.) In addressing this question, we consider the specific language under challenge and, if necessary, the charge in its entirety. ([Ibid].) Finally, we determine whether the instruction, so understood, states the applicable law correctly.‖ (People v. Warren (1988) 45 Cal.3d 471, 487.) ―The test is whether there is a ‗reasonable likelihood that the jury . . . understood the charge,‘ in a manner that violated defendant‘s rights.‖ (People v. McPeters (1992) 2 Cal.4th 1148, 1191, quoting People v. Benson (1990) 52 Cal.3d 754, 801; Boyde v. California (1990) 494 U.S. 370, 380.)

We readily rejected defendant‘s contention that the trial court‘s comments during voir dire regarding aggravating circumstances rendered voir dire inadequate to reveal a potential inability or unwillingness to follow CALJIC No. 8.88. (See discussion, pt. II.A.3, ante.) CALJIC No. 8.88, which was given before penalty deliberations, provides in relevant part: ―An aggravating factor is any fact, condition or event attending the commission of a crime which increases its severity or enormity, or adds to its injurious consequences which is above and beyond the elements of the crime itself.‖ Here, before the jurors began their penalty deliberations, the court properly instructed that they were required to ―accept and follow the law that [the court] state[s] to you and disregard all other instructions given to you in other phases of this trial.‖ In the absence of any showing to the contrary, we presume the jurors followed this instruction. (See People v. Cain (1995) 10 Cal.4th 1, 34 [the jury is presumed to follow the trial court‘s instructions].) In instructing the jurors on their task of determining penalty, the court never mentioned the terms ―premeditation,‖ ―deliberation,‖ or ―elements of the crime.‖ On the other hand, the arguments guided the jurors on how they should view aggravating circumstances. Defense counsel explained that an aggravating circumstance under section 190.3, factor (a) is not ―simply‖ a fact that establishes defendant‘s guilt of the capital crimes but instead is ―something beyond [the capital offense] that is so horrible.‖ The prosecutor, too, correctly informed the jurors that aggravating circumstances under factor (a) consisted of ―all of those other little details that go beyond the fact of killing with malice aforethought, premeditation, deliberation and includes other things as well.‖ He appropriately told them to use only ―those aggravating circumstances beyond the element of the offense itself.‖ For example, the prosecutor encouraged the jurors to consider as an aggravating factor the proof of defendant‘s intent to kill a third victim, based on

unconstitutional under the Fifth, Sixth, Eighth, and Fourteenth Amendments.‖ (People v. McKinnon (2011) 52 Cal.4th 610, 697.) ― ‗ ―There is no need to instruct the jury at the penalty phase (1) regarding a burden of proof, except as to section 190.3, factors (b) and (c), or the absence of a burden of proof, (2) regarding the meaning of the term ‗mitigation,‘ (3) that mitigating factors can be considered only in mitigation, (4) that if the mitigating evidence outweighs the aggravating evidence, the jury must impose a sentence of life without the possibility of parole, or (5) that the jury is not required to impose the death penalty even if it finds the aggravating evidence outweighs the mitigating evidence. The trial court need not omit from the instructions any mitigating factors that appear not to apply to the defendant‘s case.‖ [Citation.] [¶] ―There is no requirement that the trial court or this court engage in intercase proportionality review when examining a death verdict. A sentence of death that comports with state and federal statutory and constitutional law does not violate international law or norms . . . .‖ ‘ [Citation.]‖ (People v. Bivert, supra, 52 Cal.4th at p. 124.) ―The terms ‗extreme‘ and ‗substantial‘ as used in section 190.3 have commonsense meanings that the jury may be expected to use in applying the instructions. [Citation.] ‗The use of the word ‗extreme‘ in section 190.3, factor (d) (‗extreme mental or emotional disturbance‘) does not preclude consideration of mitigating evidence in violation of the Constitution.‘ ‖ (People v. Tafoya, supra, 42 Cal.4th at p. 197.) ―The availability of certain procedural protections in noncapital sentencing—such as a burden of proof, written findings, jury unanimity and disparate sentence review—when those same protections are unavailable in capital sentencing, does not signify that California‘s death penalty statute violates Fourteenth Amendment equal protection principles. [Citations.]‖ (People v. Cowan (2010) 50 Cal.4th 401, 510.)

P. v. Pearson

IN THE SUPREME COURT OF CALIFORNIA

I. FACTS

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C. Penalty Phase Issues

III. DISPOSITION

CHIN, J.

AI Brief